Barco v. Owens

• Court: North Carolina Supreme Court
• Writing for the Court: STACY, Chief Justice
• Citation: Barco v. Owens, 212 N.C. 30, 192 S.E. 862 (N.C. 1937)
• Decision Date: 22 September 1937
• Docket Number: No. 24.,24.
• Parties: BARCO. v. OWENS et al.

192 S.E. 862

212 N.C. 30

BARCO.

v.OWENS et al.

No. 24.

Supreme Court of North Carolina.

Sept. 22, 1937.

Appeal from Superior Court, Pasquotank County; G. V. Cowper, Special Judge.

Partition action by Loudicia Barco against Z. D. Owens and others. Judgment of dismissal, and plaintiff appeals.

Affirmed.

Petition for partition.

On the hearing, the controversy was made to depend on the construction of the will of W. L. Owens, the pertinent provisions of which follow:

"Item II. * * * I give, bequeath and devise to my beloved wife, Annie W. Owens, our home on Church Street, in Elizabeth City, house number 311, together with all of my personal property of whatever kind and description, and whereever located, including all stocks, bonds, insurance, money, notes or other choses in action, in fee simple forever with the conditions hereinafter stipulated."

"Item VIII. It is my further will and desire, that should there be property left, real, personal or mixed, which I have left my beloved wife, in fee simple, at her death, and not used by her, that she shall will same to our said five children; and if she should fail to make said will, that said property shall descend to our said five children, at the death of my said wife. I do not mean by this clause to limit, control or in any way, to interfere with the use or disposition of said property, left to her in fee, while she is living, but if she does not consume, or use all of said property during her life, and there should be any remaining at her death, it is my desire that our said five children shall have same, share and share alike. My said wife is to collect all insurance, notes, stock or bonds, or other securities and use and enjoy same as she may please, the same being hers in fee simple, and also the home on Church Street aforesaid;but the limitation above in this Item VIII, only applies to whatever of said property may be still in her possession at the time of her death."

The plaintiff and defendants are the five children of W. L. Owens and Annie W. Owens, mentioned in item VIII above.

Annie W. Owens died leaving the "Homeplace, " mentioned in item II above, to only two of the children, Z. D. Owens and Neva E. Owens.

It is the contention of the plaintiff that, under the will of W. L. Owens, she and the defendants take the "Homeplace" as tenants in common, Annie W. Owens not having devised the same in accordance witn the provisions of item VIII of her husband's will.

The court being of opinion that, under the will of W. L. Owens, his widow, Annie W. Owens, "acquired an absolute fee simple estate in and to the 'Homeplace' and said personal property with full and unrestricted power of disposition, " dismissed the action with costs.

Plaintiff appeals, assigning error.

C. R. Morris, of Currituck, and M. B. Simpson, of Elizabeth City, for appellant.

McMullan & McMullan, of Elizabeth City, for appellees.

STACY, Chief Justice.

We agree with the trial court that as the property in question was devised to Annie W. Owens "in fee simple forever" in item 2 of the will, the conditions subsequent, in so far as they are repugnant to the fee originally devised, must be regarded as unwarranted restrictions on the jus disponendi or the jus dividendi, and, therefore, void. Williams v. Sealy, 201 N.C. 372, 160 S.E. 452; Schwren v. Falls, 170 N.C. 251, 87 S.E. 49, L.R.A.1916B, 1235, Ann.Cas.l918A, 679; Hambright v. Carroll, 204 N.C. 496, 168 S.E. 817; Combs v. Paul, 191 N.C. 789, 133 S.E. 93; Barbee v. Thompson, 194 N.C. 411, 139 S.E. 838; Carroll v. Herring, 180 N.C. 369, 104 S.E. 892; Wool v. Fleetwood, 136 N.C. 460, 48 S.E. 785, 67 L.R.A. 444; Latimer v. Waddell, 119 N.C. 370, 26 S.E. 122, 3 L.R.A.(N.S.) 668. Compare Greene v. Stadiem, 198 N.C. 445, 152 S.E. 398.

The general rule is that where real estate is devised in fee, or personalty bequeathed unconditionally, a subsequent clause in the will expressing a wish, desire, or direction for its disposition after the death of the devisee or legatee will not defeat the devise or bequest, nor limit it to a life estate. Griffin v. Commander, 163 N.C. 230, 79 S.E. 499; Daniel v. Bass, 193 N.C. 294, 136 S.E. 733; Lineberger v. Phillips, 198 N.C. 661, 153 S.E. 118; Roane v. Robinson, 189 N.C. 628, 127 S.E. 626; McDaniel v. McDaniel, 58 N.C. 351, 353. Conditions subsequent, in the absence of compelling language to the contrary, are usually construed against divestment. Cook v. Sink, 190 N.C. 620, 130 S.E. 714. Co...